Tuesday, October 18, 2011

Shalit deal violates international law

A core element of all civilized legal systems is the rule of Nullum crimen sine poena, “no crime without a punishment.” This principle, drawn originally from the law of ancient Israel and reaffirmed at the post-war Nuremberg Trials, is part of all international law. It applies here as well.

Were the United States to undertake a Schalit-like deal to free terrorist prisoners, America would stand in violation not only of international law, but also of US law. This is because Article 6 of the Constitution (the “supreme law of the land”) makes all international law part of US law. Several landmark Supreme Court decisions have upheld that stance.

For Israel, there is an additional point: The country also has a pertinent and portentous history of terrorist exchanges. In June 2003, Shurat Hadin, the Israel Law Center, in anticipation of a then-planned terrorist releases, condemned Israel’s freeing of 100 Palestinian prisoners. Later, almost five times that number were freed by then-prime minister Ariel Sharon. In her letter to the prime minister and members of his cabinet, Shurat Hadin director Nitsana Darshan-Leitner wrote that releasing terrorists for any reason would reignite Arab terrorism against defenseless Jewish men, women and especially children.

Nitsana was correct. Soon thereafter, at least two newly released Palestinian terrorists proceeded to launch suicide bomb attacks in Israel. In these attacks, one “military target” of the “heroic fighters” was a cafe filled with mothers and their babies.

Every state has an indisputable core obligation under international law to prosecute and punish terrorists. This obligation derives in part from the “no crime without a punishment” principle and is codified directly in many authoritative sources. It can also be deduced from the binding Nuremberg Principles (1950). According to Principle 1: “Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.”

Terrorism is a serious crime under international law. The precise offenses that comprise this crime can be found at The European Convention on the Suppression of Terrorism. Some of the Palestinian terrorists previously released were also guilty of related crimes of war and crimes against humanity. These are Nuremberg-category crimes, so egregious that the perpetrators are known in law as Hostes humani generis, “Common enemies of humankind.”

International law presumes solidarity between states in the fight against all crime, including terrorism. This presumption is mentioned as early as the seventeenth century in Hugo Grotius’ The Law of War and Peace.

Although Israel has a clear jurisdiction to punish any crimes committed on its own territory, it also has the right to act under broader principles of “universal jurisdiction.” Its case for such universal jurisdiction, which derives from an expectation of inter-state solidarity, is found in the four Geneva Conventions of August 12, 1949. These conventions impose upon the High Contracting Parties the obligation to punish “grave breaches.”

No modern government has the legal right to free terrorists in exchange for its own kidnapped citizens, military or civilian. Terrorism is a criminally sanctionable violation of international law that is not subject to manipulation by individual countries. In the United States, it is clear from the Constitution that the president’s power to pardon does not encompass violations of international law. Rather, this power is always limited precisely to “offenses against the United States.”

In originally capturing and punishing Palestinian terrorists, Israel acted on behalf of all states. Moreover, because some of the terrorists had committed their crimes against other states, Israel cannot properly pardon these offenses against other sovereigns.

Although Mr. Netanyahu’s impending prisoner exchange would not, strictly speaking, represent a “pardon,” it would have exactly the same effect.

5 Comments:

Israel could have chosen to cut off Gaza's electricity and water until Shalit was freed. But instead of collective punishment of Palestinians, it chose collective punishment of Israelis by releasing hundreds of murderous fanatics committed to killing Jewish civilians.

As Carl will point out, a deal made under duress, is no deal at all. Once Shalit is freed, Israel owes Hamas no further payment. A deal with kidnappers is not a deal with a civilized person or state.

The article is pretty much on spot on. Its an illegal pardon and yes - Israeli officials can be prosecuted and punished as criminals because a domestic sovereign is not authorized to help others commit crimes against humanity. The power of pardon is not absolute.

"This is because Article 6 of the Constitution (the “supreme law of the land”) makes all international law part of US law. Several landmark Supreme Court decisions have upheld that stance."

No, it doesn't. So-called International Law professor Louis Rene Beres might want to actually read the US Constitution, or at least the part on which he's attempting to blow smoke. The only "international law" (Now, there's an abstraction, like "equator") the US Constitution, under Article VI respects are treaties that the President or his duly authorized representatives have signed AND which has been ratified by the Senate.

Such poor scholarship the part of on so-called Professor Beres causes me to disregard whatever he's written. He's either knowingly blowing smoke or he's a legal ignoramus.

"International Law"! If others want to consider the quasi-legal emanations from the likes of the UN, run by idiots, kleptocrats and villains as binding law, that's their problem. I certainly don't.

Links to this post:

About Me

I am an Orthodox Jew - some would even call me 'ultra-Orthodox.' Born in Boston, I was a corporate and securities attorney in New York City for seven years before making aliya to Israel in 1991 (I don't look it but I really am that old :-). I have been happily married to the same woman for thirty-five years, and we have eight children (bli ayin hara) ranging in age from 13 to 33 years and nine grandchildren. Four of our children are married! Before I started blogging I was a heavy contributor on a number of email lists and ran an email list called the Matzav from 2000-2004. You can contact me at: IsraelMatzav at gmail dot com